Oklahoma Employer's Law Bloghttps://okemploymentlaw.com
published by Kristen L. Brightmire - of Doerner, Saunders, Daniel & Anderson, L.L.P.
Wed, 02 Jan 2019 09:55:41 +0000 en
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1 http://wordpress.com/https://s0.wp.com/i/buttonw-com.pngOklahoma Employer's Law Bloghttps://okemploymentlaw.com
Sticks and Stoneshttps://okemploymentlaw.com/2018/12/06/sticks-and-stones/
https://okemploymentlaw.com/2018/12/06/sticks-and-stones/#respondThu, 06 Dec 2018 22:48:51 +0000http://okemploymentlaw.com/?p=144Continue reading →]]>Most people have heard this saying at some point in their life, probably as a child. “Sticks and stones may break your bones, but words can never harm you.” With a quick internet search, references to this saying go back as early as to the 1800s. The intent of the saying seems clear; to help someone soldier on in the face of hurtful words. Yet, there are countless stories noting that, in fact, words can and do harm people.

The courts have grappled with this concept in the realm of harassment and hostile environment cases. Are there words that are sufficiently hurtful as to create a claim for racial harassment or the creation of a racially hostile working environment? What is the employer’s responsibility to stop such conduct?

Dena Lindsay-Felton worked for KBP as a restaurant manager until she resigned in September 2016. She resigned claiming she was having to work in a racially hostile working environment. She reported to the Area Coach (over several restaurant locations), Shue Kumar. To prove a racially hostile environment, she had to prove she was subjected to (1) unwelcome conduct, (2) based upon her race, (3) which was sufficiently severe or pervasive as to alter her employment and create an abusive work environment, and (4) which is the legal responsibility of her employer.

Lindsay-Felton is African-American. KBP filed a motion for summary judgment arguing there was insufficient evidence for the case to proceed to a jury trial. KBP argued that Kumar’s issues with Lindsay-Felton were work-related, not race-related; that Kumar had in fact promoted Lindsay-Felton previously, and that any stray inappropriate remarks were not made about Lindsay-Felton. However, the record reflected Kumar voiced some concerning statements. Kumar scolded a new employee for forgetting his ID saying, “that’s why you n*****s will never be nothing, will never amount to nothing…”. Lindsay-Felton overheard this. She was also told by others that Kumar used this term in the workplace, although she never again heard it. Kumar called her stupid or dumb to her face. Kumar referred to African-American employees (and one Caucasian employee) as “cockroaches”. Kumar told her that “women of – of her culture” were beneath him. Two other witnesses (former employees) provided sworn statements that they heard Kumar make racially derogatory comments.

Based upon that evidence, the Court recently denied KBP’s motion and ordered the case to be presented a jury. It did so, citing several other cases confronted with this particular racial epithet:

… “the use of the word, ‘n[****]r’ is pure anathema to African-Americans, as it is to all of us” and such word “is the kind of insult that can create an abusive working environment in an instant” as it is “degrading and humiliating in the extreme.” … “As other courts have observed, perhaps no single act can more quickly alter the conditions of employment than the use of an unambiguously racial epithet such as ‘n[****]r’ by a supervisor.” … “’[I]n my view, being called the n-word by a supervisor-as [the plaintiff] alleges happened to him-suffices by itself to establish a racially hostile work environment.”

Citations omitted but including the 4th Circuit and the D.C. circuit. Although this was a November 7 decision out of the Eastern District of Virginia, it is in keeping with decisions across the country including Oklahoma.

In May of 2017, the Tulsa federal district court issued a similar ruling in King v. Southwest Aviation Specialties, LLC. This case arose out of conversation at the workplace surrounding the video that made news from the University of Oklahoma’s SAE chapter, which was racially charged. In the at-work discussions, King was the only African-American. It was alleged that King’s supervisor made a comment. The content of the comment was disputed but it was either “pardon me, but a lot of my friends are n*****s and some of them are not n*****s” or the comment was “I was raised on the north side of Tulsa and some of my best friends were black and I can tell you from experience that the word n****r has nothing to do with a person’s skin color.”

The employer argued it was a single incident and not directed to King, so it was not “severe or pervasive” as is required to create a legal claim. The court was not persuaded. The Court wrote, “Even an isolated comment, if sufficiently severe, can suffice to survive summary judgment.… the comment, as described by Plaintiff, involved use of the word ‘n****r’ which courts have deemed ‘polluting’ and ‘pure anathema.’”

While we may continue to recite “Sticks and Stones” to help others through times of adversity, such an adage is certainly not good legal advice. Instead, employers should think about words in terms of the long line of cases and remember –

Words can harm your employee.

Words of managers and supervisors can be imputed to the employer such that the employer is responsible.

Words of even co-employees can be the employer’s responsibility if the employer knew or should have known and failed to take corrective action.

Employers should remember. Words matter.

]]>https://okemploymentlaw.com/2018/12/06/sticks-and-stones/feed/0Sticks-and-Stones-Soren-PalmerkbrightmireGet out the Vote – Your Employees’ Rights to Votehttps://okemploymentlaw.com/2018/11/02/get-out-the-vote-your-employees-rights-to-vote/
https://okemploymentlaw.com/2018/11/02/get-out-the-vote-your-employees-rights-to-vote/#respondFri, 02 Nov 2018 00:25:03 +0000http://okemploymentlaw.com/?p=141Continue reading →]]>Election Day is almost upon us – Tuesday, November 6, 2018.

Most every state has laws protecting the rights of people to vote. In Oklahoma, employees have the right to have time off of work – if needed – so they may cast their vote. You need to understand those rights so you are prepared.

Oklahoma employers cannot penalize an employee (who is a registered voter) with loss of wages or of benefits and cannot cause an employee to suffer any adverse employment action for exercising her right to vote.

How and when must an employee make a request?

The employee must give the employer written or verbal notice of the need to be absent to vote at least one day before the election. Once the employer receives notice, the employer must advise the employee as to when he can take off to vote and when he should be working.

How does the employer respond to the employee’s request?

If the employee’s regular workday begins three (3) hours after the polls open or ends three (3) hours before the polls close, that employee does not need to be provided time off. Because the polls in Oklahoma are open from 7:00 a.m. to 7:00 p.m., if the employee’s workday (i) begins on or after 10:00 a.m. or (ii) ends before or at 4:00 p.m., that employee does not need to be provided time off to vote. Additionally, Oklahoma law expressly permits employers to change employee’s work schedules on Election Day to allow the three hours off at the beginning or ending of the work day. In other words, if your employee normally works 8:00-5:00, you could shift the employee’s schedule for Election Day to 7:00-4:00 to allow that employee three hours at the end of the shift to vote.

However, if the employee’s workday does not provide at least three (3) hours of non-working time while the polls are open, the employer must provide time off to vote.

If you cannot adjust an employee’s work schedule such that you must grant time off, an employee must have at least two (2) hours when he is not working in which to vote. If the employee works so far away from the employee’s polling place that he will need more than two hours, the employer must give “sufficient time” to vote.

Does the employer have to pay for the time off?

If you have to grant time off to vote (as opposed to adjusting the regular work day), the employee cannot be subject to any loss of compensation or benefit for voting upon proof of voting.

Have a plan ready – remember, your employee must only give one day’s notice.

]]>https://okemploymentlaw.com/2018/11/02/get-out-the-vote-your-employees-rights-to-vote/feed/0VotekbrightmireDOL’s Guidance on Whether “Caregiver Registries” are Employers Provides Guidance on the Broader Question of Who is an “Employee”https://okemploymentlaw.com/2018/07/31/dols-guidance-on-whether-caregiver-registries-are-employers-provides-guidance-on-the-broader-question-of-who-is-an-employee/
https://okemploymentlaw.com/2018/07/31/dols-guidance-on-whether-caregiver-registries-are-employers-provides-guidance-on-the-broader-question-of-who-is-an-employee/#respondTue, 31 Jul 2018 22:03:54 +0000http://okemploymentlaw.com/?p=138Continue reading →]]>On July 13, 2018, the Wage and Hour Division of the Department of Labor (WHD) issued guidance on the subject of whether nurse or caregiver registries were the “employer” of the nurses or caregivers on those registries. This guidance is notable for a several reasons. It recognizes the changing nature of employment. These registries are often online services where a person or group needing caregivers (e.g., home health, babysitter, nanny, etc.) might go to locate a caregiver in the area, conduct research, schedule an interview, do a background check, and possibly even run payroll services. Determining whether or when such a registry moves from a referral or “matchmaking” service to an “employer” matters a great deal. Once an entity becomes an “employer,” it has an extraordinary amount of responsibility and potential legal liability. Even if the caregiver works for a particular client, that client might simply be the co-employer with the registry such that the client and the registry could both be liable to the caregiver under various employment laws.

General Test for Employment Relationship

The WHD relies upon the “economic reality” test to determine whether an employment relationship exists. In other words, there is no single fact which is determinative, but the WHD (or the courts) will look to several factors to determine if an employment relationship exists. Factors generally reviewed include: whether the potential employer determines the rate and method of payment, whether the potential employer has the power to hire and fire, and whether the potential employer controls the worker’s schedule or conditions of employment.

Guidance as to Caregiver Registries

The WHD reviewed several common purposes of Caregiver Registries. At the outset it noted that the mere referring of a caregiver to a client – the “matchmaking” – would not make the Registry an employer.

Conducting Background and Reference Checks. The WHD opined that the act of running routine checks and reporting that information did not make the Registry an employee. However, the Registry making subjective comments or interpreting the results could be interpreted as the Registry acting in the role of an employer who was “selecting” a candidate. If a Registry wants to ensure it is not an employer, it must not invade the province of an employer by suggesting the best candidate or ranking the candidates.

Hiring and Firing. Again, the WHD noted that a Registry which merely carried out the decision of the client was not an employer. But, as a Registry became more involved in the decision-making, that Registry moved along the sliding scale toward establishing an employment relationship with the caregiver (and, thus, a co-employer relationship with the client).

Scheduling and Assigning Work; Setting the Pay Rate. A Registry which requires that the caregiver and client determine these issues is not an employer. Even if the Registry provides information about “going rates,” that will not change the analysis provided those rates are not required. If the Registry requires a caregiver be available for a certain number of hours, be available during a certain window, or work for a certain rate of pay, those are the types of things that will cause the WHD to look at the relationship as an employment relationship.

Note: The administrative function of performing the payroll function on behalf of the client will not transform the Registry into an employer.

Controlling the Caregiver’s Work. This can be complicated. A “matchmaker” type service simply provides information. However, if the Registry provides training or standards by which the work must be performed, or if the Registry notes that caregivers who do not abide by certain rules will be disciplined, this moves the needle toward the employment mark. Exercising control over the work performed is a significant factor reviewed by the WHD.

Form 1099s. As a reminder, simply calling a caregiver an independent contractor does not make it so, even if the caregiver wants to be an independent contractor. No court or administrative agency will look to the Form 1099 (or the Independent Contractor Agreement you drafted) and stop asking questions. The “economic reality” test requires a review of the totality of circumstances.

Lessons Learned and Possible Consequences

Whether you are a Caregiver Registry or any business, understanding the WHD’s position on what makes a person your employee matters. The guidance for Caregiver Registries is somewhat portable to other businesses. If a business is controlling the work of a person then, regardless of the Form 1099 or the Independent Contractor Agreement you may have, that person may truly be your employee.

If that person is your employee, the WHD will be asking whether you properly paid him minimum wage for all hours worked; whether you properly paid him overtime for all time worked over 40 hours in each work week; and whether you have records proving the hours worked. If you misclassified that person believing he was not your employee, you may be in a tough spot with the WHD. (This does not even address questions which may be asked of you by others, such as governmental taxing authorities).

It is worthwhile for all employers to assess their workforce to be sure persons are properly classified. First question to ask, is this person an employee? Second question, is this person being properly paid under the law? Third question, do I have the records to prove it? These questions are complicated, but necessary. It is far better to ask the questions of yourself than to have them asked of you by the Department of Labor or an ex-employee’s attorney.

]]>https://okemploymentlaw.com/2018/07/31/dols-guidance-on-whether-caregiver-registries-are-employers-provides-guidance-on-the-broader-question-of-who-is-an-employee/feed/0who-is-an-employee-approved-web16-062941kbrightmireOklahoma legalizes medical marijuana – the real impact on Oklahoma employers.https://okemploymentlaw.com/2018/07/01/oklahoma-legalizes-medical-marijuana-the-real-impact-on-oklahoma-employers/
https://okemploymentlaw.com/2018/07/01/oklahoma-legalizes-medical-marijuana-the-real-impact-on-oklahoma-employers/#respondSun, 01 Jul 2018 21:04:35 +0000http://okemploymentlaw.com/?p=132Continue reading →]]>On June 26, 2018, the voters of Oklahoma passed state question 788 legalizing medical marijuana. Much has been written about the law, some true and some embellished. There is now a rush to find out what this means. My advice to employers, take a moment. Consider the text of the law. Consider how this will impact your place of employment and how it will not.

The gist of the law is that employers cannot discriminate against an applicant or employee because that person has a medical marijuana license or because such person holding a medical marijuana license has a drug test showing positive for marijuana or its components. Of course, that goes out the window if there are federal laws or regulations which trump this state law.

Immediately, the impact on your place of employment is answering the many questions you will get. Be ready for that. Here are two overriding themes to keep in mind.

First, you can still prohibit the possession and use of marijuana at work and during working hours – even medical marijuana. That hasn’t changed.

Second, marijuana is still illegal under federal law. So, for example, if you are subject to the Drug Free Workplace Act or if you have employees subject to federal Department of Transportation drug testing regulations, that is still in place. Federal law doesn’t recognize “medical” marijuana, and state question 788 doesn’t change that.

So how does this law change your rights as an employer?

An Oklahoma employer cannot discriminate against a person because of that person’s status as a medical marijuana license holder.

So don’t do that. Don’t even ask about it. An employer has no need to know if any of its applicants or employees are holding a medical marijuana license.

An Oklahoma employer who tests its Oklahoma employees under Oklahoma state law cannot take an adverse employment action against a holder of a medical marijuana license solely based upon the results of a drug test showing positive for marijuana or its components.

So don’t do that. You can continue with your drug testing program in compliance with Oklahoma law. You can continue to test for marijuana. Because Oklahoma law requires that the employee have the “ability … to explain, in confidence, the test results,” a person holding a medical marijuana license can simply explain his or her situation if the result is positive. Hopefully, this will all be handled by your testing facility and Review Officer such that you (the employer) will never even know. This will be treated no differently than any other reason a person tests positive but is able to medically explain the result to the Review Officer’s satisfaction.

What should you do right now? Be ready with a communication for your employees so they will know your position on the key points. Understand that the law has just passed and everyone expects there will be changes, regulations, etc., in the coming months. Remain flexible to address whatever will happen.

One such area which is certainly in a state of flux is the level of protection medical marijuana has under the Americans with Disabilities Act (ADA). The ADA is a federal law, and marijuana is illegal under federal law. Thus, the majority of cases have found (so far) that employers need not accommodate the use of medical marijuana. However, an employer who asks about such use may learn about an underlying medical condition which may disclose a disability which is covered by the ADA. Further, the Oklahoma Anti-Discrimination Act not only prohibits disability discrimination, but like the ADA, requires reasonable accommodations for disabilities. As medical marijuana is legal in Oklahoma, it remains to be seen if lawsuits might be brought under state law for claims of failure to accommodate.

All this to say, employers would be wise to simply not inquire as to a person’s status as a medical marijuana license holder. Keep your focus on an employee’s job performance.

]]>https://okemploymentlaw.com/2018/07/01/oklahoma-legalizes-medical-marijuana-the-real-impact-on-oklahoma-employers/feed/0MedicalKC33akbrightmireTHE DOL’S “PAID” PROGRAM MAY NOT PAY OFF FOR EMPLOYERShttps://okemploymentlaw.com/2018/03/29/the-dols-paid-program-may-not-pay-off-for-employers/
https://okemploymentlaw.com/2018/03/29/the-dols-paid-program-may-not-pay-off-for-employers/#respondThu, 29 Mar 2018 19:29:06 +0000http://okemploymentlaw.com/?p=129Continue reading →]]>This review of the Department of Labor’s recently-announced Payroll Audit Independent Determination (“PAID”) program comes with side of skepticism. With all new voluntary programs, trust but verify.

PAID was rolled out in March 2018 with much fanfare about its benefits. PAID is a 6-month pilot program sponsored by the DOL’s Wage and Hour Division (WHD) whereby an employer can voluntarily engage in a self-audit of its payroll practices. If that audit reveals suspected or actual violations of overtime or minimum wage provisions of federal law, the employer discloses those to the WHD. Specifically, the employer must identify the violations, the affected employees, the timeframe, and a calculation of back wages owed to each affected employee. The WHD then begins a process with the employer to identify and remedy violations. The process will likely include the WHD asking for information which must then be provided.

The WHD either approves of the employer’s back pay calculations, or adjusts them based upon information received. At the conclusion, the WHD prepares a form, presumably the same form it is currently using (although that is not yet confirmed), titled the Receipt for Payment of Back Wages, Liquidated Damages, etc. This form is addressed to each affected employee and notes the amount of back wages to be paid to the employee under PAID. It also advises the employee that he is waiving his rights to sue under federal law for back wages, liquidated wages, and attorneys’ fees “for the period of time” indicated on the form.

The employee has the option to sign or not to sign. If the employee signs, the employer is to pay the back wages in full by the end of the next full pay period. If the employee does not sign, he retains all legal rights to any claim he may choose to bring.

The WHD is touting this program as a win-win. Employees get paid correctly, faster, and without litigation. Employers are encouraged to proactively get their house in order, while minimizing the risk of what we know to be costly litigation if employees sue.

An employer will need to make an individual decision about whether to participate in the PAID program. Legal counsel would be worthwhile in such a consideration. Here are some things to ponder:

Certain employers simply cannot participate. You cannot participate if you are already being investigated by the WHD or if you are already party to an administrative or legal proceeding regarding minimum wage or overtime claims (including informal overtures from an employee’s representative about settling such claims).

An employee who does not sign the WHD’s form will not waive any legal rights but will have a document which states the employer owes back wages. This employee may go to an attorney and bring a lawsuit for back wages (as well as liquidated damages and attorney’s fees) for the time period in question and perhaps a longer time period. The big risk here, other than the additional damages and fees associated with that single employee, is that the attorney may attempt to parlay that single-employee case into a collective action.

An employee who doessign the WHD’s form does not waive any other rights under federal law. In other words, if there are other violations (e.g., for a different time period, for a different violation), the employee retains the ability to sue. Moreover, the employee may also have state law rights, none of which are released by the WHD’s form. The WHD has no mechanism to provide the employer with a global waiver and release as part of the PAID program.

Undoubtedly, some employers will choose to participate in this program, and it will work like a charm. However, it is possible that an employer will participate, and there will be unintended consequences. Before you participate, consider all possible ramifications. Each employer will determine its risk tolerance.

In roughly six months, the WHD is to evaluate PAID and determine whether it should continue and, if so, whether any changes need to be made. Perhaps we will know more then.

]]>https://okemploymentlaw.com/2018/03/29/the-dols-paid-program-may-not-pay-off-for-employers/feed/0paid-bannerkbrightmireEmployers and the Impending School Walkouthttps://okemploymentlaw.com/2018/03/26/employers-and-the-impending-school-walkout/
https://okemploymentlaw.com/2018/03/26/employers-and-the-impending-school-walkout/#respondMon, 26 Mar 2018 19:49:55 +0000http://okemploymentlaw.com/?p=126Continue reading →]]>If you are an Oklahoma resident, you are no doubt aware of the possibility that on April 2 many school districts will shut down as teachers, administrators, and staff walkout in protest of the lack of education funding in Oklahoma. Why is this an issue in an employer’s blog? Well, we can discuss the need for an educated workforce or the economic benefits of a well-regarded educational system, but right now there is a more immediate concern – your employees with school-aged children.

On April 2, it is likely your employees with school-aged children will have to make alternative arrangements for those children or be absent from work. This will undoubtedly be a significant stress on your employee (and, thus, on your company).

Regardless of your views on the merits of the walkout, you should consider ways in which you can assist your employees as they grapple with this situation. You should be thinking today about what next Monday will bring. Consider distributing information to your employees as to the various resources which are available to them. For example, the Tulsa Area United Way’s website has a resource guide to help parents find assistance during the walkout from child care to meals. If you are outside of Tulsa, spend a few minutes researching as most participating school districts have collected similar resources. Providing this information to your employees (sooner rather than later) can help alleviate their stress, allow them to make plans for next week, and allow your workplace to run more smoothly.

Otherwise, employees may wake up Monday with no plan for their school-aged children. This will lead to absences from work because “I can’t leave my child home alone.” This is not an employer being insensitive to the plight of the family. On the contrary, this is your opportunity to work now with your employees. Recognize the reality of your employees’ situation and provide whatever assistance you can. As there is no way to know whether the walkout will last one day or three weeks, the better you are able to assist your employees, the better your employees will be able to focus on their jobs.

Communication and planning on your part will be key. Hopefully, your planning will be for naught, but your failure to plan will lead to disruption in your business.

]]>https://okemploymentlaw.com/2018/03/26/employers-and-the-impending-school-walkout/feed/0teacher-walkout_1519420542369.png_35070685_ver1.0_640_360kbrightmireOklahoma court requires strict adherence to the statute on non-solicitation provisionshttps://okemploymentlaw.com/2018/02/28/oklahoma-court-requires-strict-adherence-to-the-statute-on-non-solicitation-provisions/
https://okemploymentlaw.com/2018/02/28/oklahoma-court-requires-strict-adherence-to-the-statute-on-non-solicitation-provisions/#respondWed, 28 Feb 2018 16:37:05 +0000http://okemploymentlaw.com/?p=122Continue reading →]]>In many areas of the law, things are similar from state to state. Certainly, federal laws help ensure laws are similarly applied regardless of location. This is why we can look to other states when we talk about things such as race or gender discrimination; they are governed by Title VII, a federal law. On the other hand, there are areas of employment law that differ dramatically from state to state. The manner in which an employer can restrict an employee after separation is one such area.

While many states favor an employer’s right to reasonably restrict a former employee’s actions after termination (e.g., non-competes, non-solicits), Oklahoma does not. Oklahoma favors the right of individuals to work in the profession of their choice over the rights of an employer. In fact, in Oklahoma, most non-competition agreements are simply void. In other words, you cannot forbid someone from competing with his former employer unless a specific statutory exception applies; generally speaking involving the sale of goodwill or as to partners upon, or in anticipation of, dissolution of a partnership.

In 2001, the Oklahoma Legislature passed a specific law designed to strike a balance between the rights of the individual to work and the concerns of businesses. That law reads:

A. A person who makes an agreement with an employer, whether in writing or verbally, not to compete with the employer after the employment relationship has been terminated, shall be permitted to engage in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.

B. Any provision in a contract between an employer and an employee in conflict with the provisions of this sectionshall be void and unenforceable.

15 O.S. § 219A (emphasis added). Provisions in contracts under this law are referred to as non-solicitation provisions. The person can still work – even for a competing business – but simply cannot “directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.” In many ways, this law has been attacked as too limited. For example, it is of no use to employers of highly technical employees who may have significant value and may be capable of causing significant harm if employed by a competing business, but who do not “sell” anything. Nevertheless, this is the law.

Since the law’s passage, employers have attempted to determine how far they could push the boundaries and still have a provision that would not be declared “void and unenforceable” under subsection B.

On February 7, the Oklahoma Court of Appeals issued one of the few reported Oklahoma decisions on this law. In Autry v. Acosta, Inc., 2018 OK CIV APP 8, Autry brought a lawsuit seeking a declaratory ruling from the court that the contract she signed with former employer Acosta was unenforceable. Acosta countered with, among other things, a request for a temporary injunction against Autry based upon alleged violations of the non-solicitation provision. The trial court granted the requested temporary injunction against Autry, and Autry appealed.

On appeal, the Court looked critically at the non-solicitation provision in the contract which read: “Employee agrees that for a period of twelve (12) months following termination by Employee, for any reasons, including resignation, or by Acosta for Cause, Employee shall not, on Employee’s own behalf or on behalf of others, in any capacity whatsoever, including, without limitation, as an owner, salesperson, sales manager, consultant, or otherwise, directly or indirectly, engage in the business of selling, soliciting, or promoting the sale of the Clients that Employee represented while employed by Acosta.” (Emphasis added.)

The appellate court noted the following problems with Acosta’s non-solicitation provision:

Acosta’s contract prohibits “indirect” solicitation which is broader than Oklahoma law, which is limited to “direct” solicitation.

Acosta’s contract prohibits Autry from engaging in the “business of selling, soliciting, or promoting the sale of …” which is broader than Oklahoma law which addresses only solicitation of the sale of goods or services or a combination thereof.

The appellate court noted that Oklahoma law states that “[a]ny provision in a contract between an employer and an employee in conflict with the provisions of this section shall be void and unenforceable.” 15 O.S. § 219A(B) (emphasis added). It found that, in earlier cases, this language was used to invalidate non-solicitation provisions which went beyond the language of the statute. (E.g., prohibiting solicitation of past or prospective customers was beyond scope of “established” customers). The appellate court found Acosta’s provision was void and unenforceable, and it reversed the temporary injunction entered by the trial court.

Bottom line, Oklahoma courts will require strict compliance with § 219A in order to enforce any non-solicitation provision against an Oklahoma resident. Oklahoma employers should carefully draft any non-solicitation provision with an employee such that its language mirrors § 219A.

[Please note the discussion applies to Oklahoma law only. With the prevalence of out of state employers and Oklahoma employees or vice versa, drafting, interpretation, and enforceability issues can be quite complicated. Before making decisions on matters in which one or more parties are outside Oklahoma, you should consult legal counsel. Other provisions in the contract, such as choice of law or choice of forum provisions, will impact the analysis.]

]]>https://okemploymentlaw.com/2018/02/28/oklahoma-court-requires-strict-adherence-to-the-statute-on-non-solicitation-provisions/feed/0signing contractkbrightmireSixth Circuit Deems Unlawful a Policy Requiring Employees to Repay Advanced “Draws” Upon Terminationhttps://okemploymentlaw.com/2017/11/02/sixth-circuit-deems-unlawful-a-policy-requiring-employees-to-repay-advanced-draws-upon-termination/
https://okemploymentlaw.com/2017/11/02/sixth-circuit-deems-unlawful-a-policy-requiring-employees-to-repay-advanced-draws-upon-termination/#respondThu, 02 Nov 2017 01:17:18 +0000http://okemploymentlaw.com/?p=112Continue reading →]]>The employer, hhgregg, Inc., has a compensation system where the sales employees (non-exempt) are paid commissions. They are advanced a “draw” in any week in which they do not make enough sales to have the commission payments cover the minimum wage requirements. The “draw” is then deducted from future commissions. Upon termination, the employee – per policy – is required to immediately repay any outstanding draws.

A collective action was brought against hhgregg, and various wage and hour claims were asserted. We are going to focus on one.

Interestingly, the employees did not focus on the policy which required them to repay any outstanding “draws” upon their termination. In fact, the company represented it did not enforce that part of the policy. But, the Court of Appeals found it quite interesting.

The Court wrote about the complications such a policy might cause an employee, even if the policy were not enforced. “Even if defendants never demanded repayment in practice, an employee may believe he owes a debt to the company for which he could be made responsible at a later date. Incurring a debt, or even believing that one has incurred a debt, has far-reaching practical implications for individuals. It could affect the way an individual saves money or applies for loans. An individual might feel obligated to report that debt when filling out job applications, credit applications, court documents, or other financial records that require self-reporting of existing liabilities.”

The Court of Appeals noted the possibility that, if made to repay the debt upon termination, the employee’s wages for a given work week could fall below minimum wage which would, in fact, be a violation of the Fair Labor Standards Act. Thus, even though the employees did not complain in their lawsuit about this section of the policy, it is this section that will survive and be returned to the trial court for further consideration.

Two things come to mind when reading this case. First, it is a reminder as to the importance of ensuring you are paying employees correctly. Second, it is a reminder to be proactive in your thinking about wage and hour issues – question the way in which you are compensating your employees. The “problem” raised in this lawsuit failed to even be the issue that sparked the interest of the Court of Appeals who, after careful review of the entire record, located an issue it deemed worthy of discussion (and remand to the trial court).

]]>https://okemploymentlaw.com/2017/11/02/sixth-circuit-deems-unlawful-a-policy-requiring-employees-to-repay-advanced-draws-upon-termination/feed/0Sales CommissionkbrightmireTransgender Employees Continue to be at the Center of Debatehttps://okemploymentlaw.com/2017/10/05/transgender-employees-continue-to-be-at-the-center-of-debate/
https://okemploymentlaw.com/2017/10/05/transgender-employees-continue-to-be-at-the-center-of-debate/#respondThu, 05 Oct 2017 18:27:02 +0000http://okemploymentlaw.com/?p=87Continue reading →]]>On October 4, Attorney General Jeff Sessions issued a Memorandum withdrawing the 2014 Memorandum of former Attorney General Eric Holder concerning whether Title VII’s prohibition on sex discrimination included a prohibition on discrimination because of a person’s transgender status. Attorney General Holder concluded it did. Attorney General Sessions concludes it does not. Interestingly, it is a reminder of the purpose of the three branches of government. Congress as the legislative branch drafts our laws. The Attorney General as part of the executive branch is responsible for enforcing those laws. The judicial branch is responsible for interpreting our laws.

Remembering the purpose of each branch is important. At any time, Congress can clarify whether Title VII prohibits discrimination on the basis of a person’s gender identity, transgender status, sexual orientation, etc. Until it does so, members of the executive branch, like the Attorney General, will make decisions as to whether to pursue cases based upon that branch’s interpretation of the law. But, ultimately, the law’s actual interpretation falls to the judicial branch.

Title VII, as interpreted by the courts, governs all parties subject to it – private employers, employees, and yes even the Attorney General. While today’s Memorandum may signal a change in the U.S. Government’s position which may trickle down and reflect a change as to the cases brought by the Department of Justice or the Equal Employment Opportunity Commission, it has no effect on the law which continues to be interpreted by the courts. Thus, until such time as the issue is finally resolved by the courts (or until the law is clarified by an amendment passed by Congress), you can expect private litigants will continue to file lawsuits.

As an aside, today’s Memorandum only concerns Title VII, the federal legislation. Many states and municipalities have enacted laws or ordinances protecting the rights of transgender persons within their jurisdiction to be free from employment discrimination. Employers are required to comply with all laws governing their employees in the jurisdiction in which they work, despite the seemingly cumbersome nature of keeping apprised of so many obligations.

]]>https://okemploymentlaw.com/2017/10/05/transgender-employees-continue-to-be-at-the-center-of-debate/feed/0Branches of GovernmentkbrightmireWhite Collar Exemptions Continue to Be Awash with Questionshttps://okemploymentlaw.com/2017/10/04/white-collar-exemptions-continue-to-be-awash-with-questions/
https://okemploymentlaw.com/2017/10/04/white-collar-exemptions-continue-to-be-awash-with-questions/#respondWed, 04 Oct 2017 11:10:28 +0000http://okemploymentlaw.com/?p=76Continue reading →]]>To recap, persons qualifying for what is commonly referred to as the “white collar” exemptions are exempt from the entitlement to overtime pay under the Fair Labor Standards Act (FLSA). White collar exemptions are the executive, administrative, and professional exemptions. With few exceptions (like teachers and attorneys) to qualify for a white collar exemption, the Department of Labor (DOL) has required, among other things, positions to be paid a minimum specified weekly salary.

In 2004, the DOL set that minimum weekly salary at $455 per week (which, if one worked 52 weeks in a year, would equal $23,660 annually). That rate remained the same until 2016 when the Obama administration proposed to increase the rate to $913 per week (or $47,476 annualized), with an automatic accelerator built-in for successive years. The change was set to go into effect December 1, 2016.

As employers began preparing for this increase – be it reclassification of positions, increases in pay, changes in duties, or the like – lawsuits were filed contesting the proposed regulations. On November 22, 2016, days before the regulation was to take effect, the United States District Court for the Eastern District of Texas entered an injunction, stopping the regulation from taking effect anywhere until such time as the litigation could be resolved.

Time passed. A new administration took the helm. The Trump administration was not as excited about the changes as the previous administration, which brings us to today.

The DOL has formally advised the court that it will no longer advocate in favor of the 2016 regulations. The DOL has maintained its concern with the issue. To that end, it issued questions to the public in late July and sought comments through late September on a multitude of issues surrounding the white collar exemptions. The questions elicited information on topics such as the salary level to be used; whether it should be the same for all three white collar exemptions; whether the salary should vary based upon region, employer size, etc.; the salary’s relationship to the “duties” test; employer’s actions already taken in response to the proposed 2016 regulations; the impact of non-discretionary bonuses and incentive payments; and if and how salary levels should be automatically increased over time.

All of this to say; the Department of Labor under the Trump administration seems disinterested in keeping the Obama administration’s version of the regulations. It does, however, seem interested in making some adjustments to the 2004 regulations. It should. There have been many changes to the way in which we work from 2004 to 2017 (almost 2018). It would be good for all parties to have a fresh look at the system to ensure business has the opportunity to attract, retain, and grow while ensuring employees have the opportunity for a fair day’s pay for a fair day’s work. If clarity could be accomplished, it should also help to minimize the very costly class and collective lawsuits currently being filed alleging employers have “mis-classified” groups of employees.

When will this utopia of clarity arrive? Ah. That is anyone’s guess. The DOL does not have a timeline by which it must act. In fact, it is not required to do anything at all with the regulations. For now, all parties (employers, employees, and attorneys for both) continue to make the best decisions they can on any given day.